P.O.

Box 10841
Eugene, Oregon 97440
p/f: 541.257.8878
info@t1df.org
www.t1df.org
June 27, 2019

Honorable Teresa J. James Emailed and sent via FedEx

Magistrate Judge
United States District Court
500 State Avenue, Suite 208
Kansas City, Kansas 66101

RE: In re: EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices and Antitrust
Litigation, MDL No. 2785 / Civil Action No. 17-2785 (EpiPen MDL) 1
Presentation used by Class Counsel during Class Certification Hearing Phase 2

Dear Judge James,

The Type 1 Diabetes Defense Foundation (“T1DF”) is an interested third party. We have no
current relationship with any of the parties in the above-mentioned case (“EpiPen MDL”); we
speak solely on behalf of people with insulin-dependent diabetes who have been injured by the
failure of Third Party Payers (“TPPs”) to base plan parameters (tiered copays, coinsurance
payments, deductible amounts, premium rates, other benefit thresholds) on the low net prices
they negotiate with drug manufacturers. In 2018, our former counsel, Keller Rohrback, tolled our
claims against TPPs in a related insulin case. We terminated our representation by Keller
Rohrback and were allowed to unconsolidate Boss v. CVS Health from In re Insulin Pricing
Litigation and to withdraw all our claims without prejudice.2 We plan to refile our claims against
TPPs after the tolling agreement terminates. In the meantime, we recognize that this related
EpiPen MDL could have a precedential impact on future litigation by bona fide patient plaintiffs
on drug pricing and insurance-related matters that involve rebates negotiated by TPPs. As
members of the general public, we have no recourse in this EpiPen MDL but to rely on this
Court’s oversight over counsel’s compliance with its case management directives.

We therefore would like to bring the following docket matter to your attention:

1 Unless otherwise specified, docket/ECF numbers refer to papers filed in this case.
2In re Insulin Pricing Litigation, Civil Action No. 17-699 / Boss v. CVS Health, Civil Action No.
17-1823; Bewley v. CVS Health, Civil Action No. 17-12031; Prescott v. CVS Health, Civil Action No.
17-13066.

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 During the Class Certification Hearing, Phase 2, that I attended on June 12, 2019, Counsel
handed to the Court papers, including copies of the presentation slides they used during their oral
argument. At the end of the proceeding, the Court directed the Parties to enter all exhibits and
presentation materials relied upon or provided to the Court during this proceeding into the case
record in anticipation of a possible Rule 23(f) appeal.3 Defendants have substantially complied
with the Court’s instructions.4 Plaintiffs, apparently, have not yet done so. 5 More than two weeks
have now elapsed since the Court’s order; the presentation and other papers Plaintiffs’ Counsel
relied upon during the class certification proceedings have not yet been entered into the case
record.

There is a strong public interest in Plaintiffs’ presentation for the following reasons:

Plaintiffs’ presentation used during the Class Certification Hearing, Phase 2, included four
slides on the issue of intra-class conflict. Intra-class conflict between the TPP subclass (currently
allocated about 70% of the claimed damages 6) and the patient/consumer subclass is a matter of
critical interest and precedential importance for all U.S. patients who must use manufacturer-

3See, e.g., Clerk’s Courtroom Minute Sheet, ECF 1632 (“The parties will submit exhibits and
presentations from the hearing to be made part of the record.”).
4 Notice of Presentation Used in Class Certification Hearing by Mylan N.V., Mylan Pharmaceuticals, Inc.,
Mylan Specialty, LP, Mylan, Inc. (Attachments: # 1 Presentation), ECF 1645 (entered: June 21, 2019).
5 We emailed Plaintiff Counsel regarding this matter on June 24, 2018, but have not heard back from
them. Their presentation and other exhibits have not yet, to our knowledge, been submitted in the case
record.
6 This 70/30 distribution between TPP and consumer sub-classes is a persistent characteristic of the high-
level aggregate approach Dr. Rosenthal appears to have developed in the early 2000s to support the payer-
aligned Prescription Access Litigation campaign. This approach sidesteps issues of risk transfer between
TPPs and plan beneficiaries and thus issues of TPPs’ actual injury (and possible unjust enrichment), i.e.
intra-class conflicts. See, e.g., Declaration of Meredith Rosenthal: Estimate of Units Paid for by
Neurontin End Payers that Resulted from Alleged Fraudulent Marketing by Defendants dated August 11,
2008, ECF 1457-6 (Exhibit F), in In re Neurontin Marketing, Sales Practices and Product Liability
Litigation, MDL Docket No. 1629 (Master File No. 04-10981). When that case settled in November 2014,
TPPs received 71.5% of the settlement award and class counsel received the remaining 28.5% (reduced
from counsel’s requested 33.33% but disproportionally larger than the 17.8% typically awarded for
similarly sized settlements). In re Neurontin, ECF 4303 at 8. Class counsel, in that case, essentially
claimed for themselves the full share of the consumer class excluded from final settlement (consumers
received 0%). Contrast with, e.g., Allen v. Holiday Universal, 249 F.R.D. 166, 185 (E.D. Pa. 2008)(“In
other words, the class’s attorney may not become the de facto plaintiff”), cited in Defendants’ opposition
to plaintiffs’ motion for class certification in In re Novo Nordisk Securities Litigation, Case 3:17-
cv-00209, ECF 148 at 38.

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rebated pharmaceuticals to treat specific medical conditions in six therapeutic classes (including
rheumatoid arthritis, severe allergy, diabetes, and asthma) and who have been overcharged by
TPPs based on gross pharmacy reimbursements or AWP instead of the much lower net prices
TPPs negotiate directly with drug manufacturers or indirectly via their PBM agents. 7 Class
conflict is also a fundamental issue in this EpiPen MDL, but one that has not yet been fully
briefed by Plaintiffs’ Counsel. The four slides that address intra-class conflict in Plaintiffs’
Counsel’s presentation seem to be their most substantive public pleading in response to
Defendants’ specific allegations.8

It seems that Plaintiffs’ presentation mentioned above should therefore be entered in the
case record as directed by this Court, and thus disclosed to the public.

Respectfully submitted,

Charles Fournier, Vice President

Type 1 Diabetes Defense Foundation

7 The record of this case (and records of related cases, e.g. In re Insulin Pricing Litigation), includes many
allegations, documents, email communications and deposition statements regarding these transactions.
See also, e.g., Plaintiffs’ statements in Class Plaintiffs’ Opposition to Humana Inc.’s Motion for an
Extension of Time, For a Protective Order, and for Costs and Fees, ECF 783 at 10–11 and this Court’s
related Order, ECF 1439 at 2; and ECF 1605-6 at 3.
8Mylan Defendants’ Opposition to Class Plaintiffs’ Motion for Class Certification, ECF 1636 at 92–95.
Plaintiffs’ formal response to these allegations has apparently not yet been filed without seal.

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